Code Md. art 72, which regulates the oyster fishery in the waters of the state, provides for the maintenance of vessels to guard the waters, directs their commanders to arrest all violators of the law and seize offending vessels, and authorizes them to use arms, in their discretion, for the enforcement of the law. Section 25 directs the board of public works to furnish the necessary arms and ammunition for the several vessels; and Act Md. 1886, c. 296, vests in it the appointment of a commander in chief and deputy commanders for the state fishery force, and the supervision of the commander in chief in his control of the force. Held, that the action of the board in appointing officers and furnishing ammunition is purely official and ministerial, and its members are not personally liable for the abuse by a deputy commander of the discretion vested in him by statute in the matter of using such arms.

MORRIS, District Judge. This is a libel in admiralty to recover for an alleged maritime tort committed upon navigable waters within the admiralty jurisdiction of this court. The libelant sues for alleged pecuniary loss suffered by reason of the death of his son, John W. Mister, who was killed by a shot fired from the sloop Maria,one of the vessels of the Maryland state fishery force. Libelant'l;l son was master of the oyster-dredging schooner Ostrich, and when shot was fleeing from the sloop Maria, whose commander, him, and to seize his schoonWaters,Ford, was attempting er, for illegal dredging in the waters of the. Chesapeake bay, within the terri,torial limits of Mar;vJand. The defendants (other than Waters.Ford, who was in actual command of the sloop Maria) are the governor, the comptroller, and the treasurer of Maryland, Who ,eoD:stitute the state board of public works; and Thomas C. B. Howard, another defendant, is the commander in chief of the state fishery force. They are all sued as individuals, and recovery is sought against them pel'Sonally.The questions to be now decided arise on the exception to the sufficiency of the libel pleaded in the answetsof· the members of the board of public works and of the c?mm,ander in chief of the fishery force. The law of Mary1'and(Code, art. 72) prescribes regulations for taking oysters in the waters {)f state, and directs the deputy commanders in charge of of the state fishery force to constantly guard the waters of their respective districts, and to arrest and bring to justice all violators of the law, and to seize offending vessels. By.sectionZQ board of public works are empowered and to purchase for each guard boat such arms and ammunition as may be necessary to make them efficient, and the same section directs that the officers of such boats shall be authorized to use such arms, in their discretion, for the enforcement of the provisions of the oyster laws of the The board of public works is composed of the governor, the comptroller, and the treasurel' of the state. This board is established by the constitution of Maryland, which confers upon it the power to hear and determine mattersaffecting the public works of the state, and to supervise those in which the state is as stockholder or creditor, and to vote its stock. By the act of 1886, c. 296, the additional duty was imposed upon the board to supervise the commander in chief of the state fishery force in his control and direction of the force, and to appaintthe commander in chief for the whole force and a deputy commander. for each vesl;l Neither the commander in chief nor any l. member of the board of public works was present when the shot wa·s fired that killed libelant's son. It was not the duty of any oneo:fthem to be anywhere in that locality, the law providing that their office shall be in the· city of Annapolis.. The participation in the alleged tort charged against them in libel is that they had caused arms and alllmunition to :be put on the sloop M:aria, and "wrongfuHy directed,

ltIsT]j:R V., BROWN.

911'

authorized, or allowed Waters Fora, the master, and crew, of said vessel, to use said arms, in their in the enforcement, or supposed enforcement, of the oyster laws of Maryland," and "that the authority given and the license allowed by defendants to the officers of the oyster police force to shoot persons suspectedof violations of the oyster laws, while fleeing, was without warrant ·of any valid law." The fault charged against the members of the board of public works and the commander in chief is, substantially, as was conceded in argument, that they did not instruct the commander of the sloop Maria to refrain from shooting when the circumstances were such as are alleged to have existed when Mister was shot. The connection of these defendants with the state fishery force is purely an official connection. The vessels belong to the state of Maryland, and the salaries and expenses are paid by the state. The board of public works (section 27) are empowered to appoint a suitable person to command the force, and a deputy commander for each .vesseL The commander and deputy com; manders each takes an oath of office, and gives a bond to the state for the :faithful performance of his duties as prescribed by law. The duties of the deputy commanders are prescribed by law, and not by the board of public works, nor by the commander in chief, (sections 30,. 31, 36;) and, while the board of public works are directed to purchase arms for the vessels, (section 25,) it. is the law itself which declares that "the officers of such boats shall be authorized to use such arms in their discretion for the enforcement of the provisions of this article." It is apparent that there is no duty imposed upon the board of public works or the commander in chief to instruct the deputy commanders, or their crews, under what Circumstances they mayor may not shoot, in the enforcement of the law. It is not, therefore, the members of the board of public works or the commander in chief who allowed or directed or authorized the commander of the sloop Maria to use arms, in his discretion, in the enforcement of the law, but the legislature of Maryland. It is not specifically alleged in the libel that the board of public works or the commander in chief ever gave orders to Deputy Commander Waters to shoot fleeing offenders, and it is not contended in argument that any such proof is forthcoming. Nothing is alleged, and it is not contended that an;ything can be established against the board of public works and the commander in chief, except that they have furnished the vessels with arms, as required by the law, and have instructed the officers to enforce the law. The manner of enforcing the law has been left, as the statute has left it, to the indivitlual discretion of the deputy commanders. For this purely official and ministerial action, in my judgment, neither the members of the board of public works nor the commander in chief can be held personally liable, even though it should be established by proof that the deputy commander in charge of the vessel abused the discretion committed to him by the statute. It was held by the supreme court of the Unit·

9102

I'EDERAL .REPORTER. vol.

59.

Ot.1286, that ed States in, Bo.bertson v. Sich,el, 127 U. S.515,8 "apu,hli,c or agent is not responsible for the misfeasance or positive;wrongs, or for the nonfeasance or negligence or omissions of .' duty, of the agents or servants or other persons under him, in the discbarge of hisoffi.cial duties." In order to charge the of tbe board of public works or the commander in chief, it must:be alleged and 'proved that they have been guilty of personal neglect, misfeasance, or wrong. ' It is urged that the law which directs the board of public works tosu,pply the guard boats with arms and ammunition, and authorizes the officers of the boats to use such arms, in their discretion, for the enforcement of the law, is in that it authorizes the officers of the vessels to deprive suspected persons of their lives without due process of law. This objection, it is plain, is addressed, not to the <:onstitutionality of the law itself,but to the consequences of ·. its, ,pOssible abuse. The necessity for arming the vessels. cannot 'be gainsaid; otherwise, they would be at the ,mercy of any.;om14nation of lawbreakers who saw fttto combine to resist 'them. How far the law is a protection to the, particular act ·of the officers Or lnen who used the arms in this case,is aques,tionwhich does riot now arise on these excepu.onl!l,and not been argued or considered. I aID of opinion that .t;he in the answer of the memof the board of public works and of the commander in chief to the libel is well taken, and it is sustained.

Where a bill seeks relief as well as discovery, the prayer for .diseovery cannot be made the ground of equity jurisdiction unless complainant alleges his inability to esta'blish, at law, the matters of which discovery is sought; and the bill should be dismissed when the answer in fact contains no discovery, and it appears that complainant is abundantly able to establish such matters by other evidence. A prayer for injunction, not as a primary remedy, but merely to preserve property from sale pending litigation concerning dt, cannot be made a ground of equity jurisdiction, when it appears that the property had already been sold when the bill was filed, of which fact complainants had knowledge, or the means of knowledge.

2.

SAME-INJUNCTION.

8.

SAME-TRUSTS.

A suit to hold a bank lil\-ble for the value of goods wrongfully pledged to it by complainants' agent as security for a personal loan, and sold by the bank thereunder, is not cognizable in equity on the theory that the goods were impressed with a trust of which the bank had notice, when cOlIlplainants do not attempt to trace the proceeds into any particular fund of which they still form a part, but merely seek a decree which will bind all the bank's property, as a judgment at law would. 52 Fed. 513, reversed.

Appeal from the Circuit Court of the United States for the District of Maryland. This was a suit by Horace K. Thurber, Francis B. Thurber, Albert . E. Whyland; Alexis Godillott, Jr., and Jacob S. Gates, copartners trading as H. K. & F. B. Thurber & Co., against the Cecil National Bank and Arian M. Hancock. The bill alleged that Hancock, agent of plaintiffs, wrongfully hypothecated certain warehouse reo ceipts to the defendant bank; charged the bank with notice; and asked for a discovery and injunction, and a decree that the bank deliver the goods covered by these receipts or their proceeds if sold. A decree was rendered in the circuit court against the defendants, (52 Fed. 513,) whereupon the bank appealed. Robert H. Smith and W. L. Marbury, for appellant. Thomas G. Hayes, for appellees. Before GOFF, Circuit Judge, and SEYMOUR and SIMONTON, District Judges. SEYMOUR, District Judge. This is an appeal by one of the defendants in a suit brought by the members of the firm of H. K. & F. B. Thurber & Co. against the appellant and one Arian M. Hancock. A decree was rendered in the circuit court against the defendants, (52 Fed. 513,) but only the bank appeals. As to Han· cock, there has been an order of severance, and leave has been granted to the bank to prosecute its separate appeal. Appellees alleged in their amended bill, that the defendant Hancock was their agent, and as such was authorized to sell for them v.59F.no.9-58